What Prop 8 Ruling Means for California

A couple celebrates upon hearing the U.S. Supreme Court’s rulings on gay marriage in City Hall June 26, 2013 in San Francisco.

By Geoffrey A. Fowler and Tamara Audi

Updated with comments from state officials and Prop 8’s proponents

In California, the Supreme Court’s ruling on Proposition 8 means that marriage for same-sex couples may resume in about a month, although there remain some legal avenues for those who oppose gay marriage to challenge whether it applies to all California residents.

The court avoided a ruling on the merits of Prop 8, saying that both the Supreme Court and a federal appeals court lacked jurisdiction to hear the case. That means a federal district court’s ruling striking down Prop 8 stands.

In his original 2010 district court ruling on Prop 8, JudgeVaughn Walker said his ruling applied to all California counties and citizens, even though the lawsuit was filed by just two couples in two counties.

Could some counties that weren’t home to those couples attempt to challenge whether the ruling applied to them?

So far, no county clerks have said they will do that, but the original proponents of the Prop 8 ban have in the past said they will use available legal means to limit the scope of any ruling that wasn’t in their favor.

ProtectMarriage.com, the group that defended Prop 8 at the Supreme Court and put it on the California ballot, vowed to keep fighting in the courts to limit the scope of the court’s judgment. “Our legal team is studying this closely and assessing what options we may have. We won’t know for some time what those options might be,” said ProtectMarriage general counsel Andy Pugno in a call with reporters.

But he suggested there were still legal avenues for Prop 8 to remain in effect in a conflict between California and federal law. “In ruling the way the court did, the court has completely vacated and nullified the 9th Circuit’s decision in this case,” said Mr. Pugno. But state law, he said, requires officials to enforce a law “until there is an appellate court decision declaring it unconstitutional.” Judge Vaughn Walker’s original 2010 district court ruling may not be sufficient, he said.

California Attorney General Kamala Harris’s office declined to comment on Mr. Pugno’s statement. But earlier in the day, she said the Supreme Court ruling means that “every county in the state of California must now recognize the right of same sex couples to legally marry.”

Ms. Harris said that marriages will resume in the state as soon as the Ninth Circuit Court of Appeals lifts its stay on an earlier ruling overturning the proposition that banned gay marriage. She issued a legal letter to California’s Gov. Jerry Brown saying the state “can and should instruct county officials that when the district court’s injunction goes into effect, they must resume issuing marriage licenses to and recording the marriages of same-sex couples.”

Ms. Harris said she is urging the Ninth Circuit to lift the stay immediately, rather than wait its standard 25 days. The moment that happens, she said, “Wedding bells will ring.”

Before a group of reporters, Ms. Harris said “today represents a great day for California, it represents a great day for the United States.” Ms. Harris said if county clerks don’t abide by the law her office will “take legal action” to make sure they perform same-sex weddings.

In the city and county of San Francisco, which has a history of pushing to perform gay marriage, city attorney Dennis Herrera said he would move to enforce gay marriage throughout California should another county dispute the ruling’s statewide application. “Given arguments that Prop 8′s proponents have consistently advanced, my office is prepared to litigate immediately against any effort to limit or delay the restoration of marriage equality for all Californians,” Mr. Herrera said in a statement.

David Boies, one of the lawyers who argued the case against Prop 8, scoffed at the idea that there might be a legal way for the ban on marriage to remain in some parts of the state.

“If some renegade clerk in some isolated county does something, there will be a quick remedy for that,” he said. “The law is absolutely clear: Prop 8 is dead, all across California.”

While California Gov. Jerry Brown said the state would begin issuing marriage licenses as soon as possible, it will take at least 25 days for that to happen.

Following standard procedures, the Ninth Circuit Court of appeals issued a notice on Wednesday that it wouldn’t issue its mandate until that period has passed, following a procedure called Rule 45.

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